If you are new to the H1B visa process, you may come across the term many use called as “H1B Cap”. Some of you may wonder, what it means, how is it determined, what is regular cap vs masters cap, how are they set, calculated, what is Singapore and Chile H1B cap, and many such questions. In this article, we cover all those details and look at FAQs as well.
What is H1B Visa Cap ? Meaning ?
In general, “Cap” can mean multiple things like a hat someone wears, or a protective lid, or upper limit. The context of using cap determines the exact meaning of it. In context of H1B visas, H1B Cap it is nothing but the annual limit set by the US Congress. H1B cap is the maximum number of H1B visas that USCIS can issue in a fiscal year as per Congress.
There are many types of H1B cap, regular cap, US Masters cap, Singapore-Chile Cap. Let’s look at each of them in detail.
What is H1B Regular Cap ? Who Qualifies for it ?
H1B Regular cap or H1B Regular quota cap is nothing but the annual limit set for H1B petitions filed under regular quota. H1B regular quota filing petitions are the ones that generally meet all the requirements of H1B visa. The key difference is that there is no requirement to have US Masters degree to be counted in the regular cap.
Usually, all the general H1B requirements such as bachelors degree, job falling in specialised skills apply here. In some cases, if there is no bachelors, but the candidate has a lot of experience, each year of education can be equated with 3 years of experience.
H1B Regular Cap Count ?
US Congress has set an annual limit of 65,000 for H1B regular cap. What it means is that USCIS can issue up to 65,000 H1B visas in a fiscal year. One key thing to note is that, this count of 65,000 also includes 6,800 petitions set aside for Chile-Singapore under free trade agreement and called as H1-B1 program. We will review this in later section.
What is H1B Masters Cap ? Qualification ? Advanced Degree?
H1B Masters cap or H1B Masters’s quota cap is the annual limit that is set by US Congress to file H1B petition under US Masters quota or Advanced Degree Quota. To file under H1B Masters quota or advanced degree quota, the applicant need to have an Advanced Degree like Masters or higher degree such as Ph.D from a US University. You can only file under the advanced degree exemption, if you a Masters degree from US University.
Also, to note, anyone who has obtained an Associate or Bachelor’s degree from US Universities does NOT qualify for this cap. Similarly, a person who has obtained a foreign (i.e. non-US) Master’s degree or higher also does NOT qualify for this.
H1B Masters or Advanced Degree Cap Count ?
US Congress has set an annual limit of 20,000 per fiscal year for US Masters Cap or Advanced Degree cap. What it means is that, USCIS can only issue up to 20,000 H1B Visas for applicants who filed under the US Masters quota.
There are no changes to the cap count for H1B FY 2022 season. There were some discussions done in the past as part of Obama Immigration Reform to increase H1B cap to 110,000, but nothing went far enough to become a law.
You may also watch below short video on H1B cap details.
H1B1 – Singapore – Chile Cap? Free Trade Agreement
As per US Congress, under H1B Regular cap, there are 6,800 H1B Visa slots set aside from the regular quota cap for Singapore and Chile Countries under their Free Trade Agreement. It is usually called the H1B1 Cap. This annual cap is 6,800 and the number is taken out from Regular Cap. Basically it means that effective regular cap petitions quota left after this is 65,000 – 6,800 = 58,200.
The important thing to note is that, any unused H1B1 slots from previous year would be added to the H1B Regular cap of the next fiscal year. In general, the H1B1 quota is heavily under utilised and majority of the H1B1 Slots are added back to the regular quota. Let’s look at how it is calculated.
How is H1B Regular Cap Calculated? Less than 65K ?
Below is the equation that represents how to get the total count for regular quota cap:
- Let’s say Current fiscal year Regular Cap quota = XXXX
- Let’s say Singapore – Chile Free Trade agreement Petitions (H1-B1 Cap) filed in Previous Fiscal Year = YYYY
- H1B Regular Cap for XXXX = Annual Cap for XXXX (i.e. 65,000) – H-1B1 Cap for XXXX (i.e. 6,800) + Unused H-1B1 numbers from Previous year YYYY + Additional petitions accepted by USCIS as Buffer for denials, rejections, etc.
- The unused H1B1 petitions for the previous year are first added to the cap and consumed. So when USCIS publishes a cap count of X number that number already includes the unused H-1B1 number of the previous year. For official statement on this, look at the second question at this USCIS link. The H-1B1 category is heavily under-utilised. As evident from old FY-09 number, only 700 petitions were used (which means 6,100 petitions were added to FY-10 cap). [FY-09 was the year quota got over within first few days, and this shows the low demand for H-1B1 even when there was a huge demand for H-1B]
- USCIS has historically accepted more H-1B petitions than available cap numbers based on the assumption that some petitions will be denied, rejected or withdrawn. USCIS selects about 12% to 15% more than the annual cap to account for denials, withdrawals, etc. You can check H1B Cap Count History for last 10 years to get an idea.
- The count of petitions for the current fiscal year only includes petitions that reached USCIS prior to final receipt date (if already declared) and which are either pending processing or have been approved. It doesn’t include any petitions that have already been denied, rejected or withdrawn on the cap publication date.
What are H1B Cap-Exempt Petitions?
In general, when you are submitting H1B petition for the first time for an applicant, they need to go through the annual H1B Cap and lottery as applicable. Once, they are selected in H1B lottery or counted towards cap, then they do not have to go through H1B cap again or H1B lottery again. Such petitions are called Cap Exempt H1B petitions. Also, there are some classes of petitions that fall under cap exempt like universities, etc.
Below are the common cap exempt situations when filing H1B.
- H1B Extensions to extend the amount of time a current H1B worker may remain in the US
- H1B Amendment to change the terms of employment for current H-1B workers
- H1B Transfers to allow current H-1B workers to change employers
- Concurrent H1B to allow current H-1B workers to work concurrently in a second H-1B position
- H1B Cap Exempt Sponsors or employers like non-profit universities, non-profit research or govt research organisations, non-profits related to higher education filing H1B petitions.
All the above listed categories of H1B petitions can be filed anytime during the year, and are not subject to April 1 filing date and October 1 start date.
No, there are no changes to the H1B cap since the H1B Registration System was introduced. In the past, they were physically accepting all the H1B packages and then doing lottery. Now, they use the online registration system for selecting the Cap required applicants.
USCIS has past data on the H1B rejections, denials, withdrawals for every fiscal year. Based on history, they would select that extra percentage of petitions, so that the H1B Cap is reached and none of the slots are wasted. As per Historical H1B cap reach data, they have selected anywhere from 12% to 15% more H1B applicants than the total 85,000 to account for these.
Firstly, the official term USCIS uses is random selection, people commonly refer to it has H1B lottery. A lottery or random selection situation arises when there are more registrations submitted to USCIS than the required H1B cap of 85,000. USCIS uses random lottery to select the Regular cap applicants first. Later, the unselected Masters cap applicants are put in a pool and second lottery is run to select US masters cap. Read What is H1B Lottery ? Process, How it works
In general, the answer is No. Except one situation from FY 2021 with the second round lottery, there has never been an instance of cap being opened again once was declared closed.
What do you think of the H1B cap ? Add your thoughts in comments.